173 Iowa 355 | Iowa | 1915
In the city of Waterloo, Mulberry Street runs practically east and west. Second Street runs north and south and intersects Mulberry Street at right angles. One of defendant’s lines in the city is laid on Mulberry Street and runs over and across Second Street. The line on Mulberry Street extends a number of blocks east and west of Second Street, on Mulberry Street. On the 3d day of June, 1912, the defendant was operating one of its cars on Mulberry Street and proceeding eastward towards Second Street. Plaintiff’s intestate, Earl Westcott, on the same morning, was riding a motor cycle on Second Street, proceeding southward towards the tracks of defendant company. At the intersection of these two streets, a collision occurred between the deceased and the defendant’s car, out of which collision the deceased arose with severe injuries, from which he died on the 17th, day of September, 1912, His administrator brings this action to recover damages for the injuries thus sustained, and bases his right to recover upon the allegation that the defendant was at the time operating its car at a high and dangerous rate of speed, without sounding any gong-or giving warning of any kind of its approach, and in that it failed to slow down and stop the car when danger to young Westcott became apparent, or, in the exercise of reasonable .cautipn, should have become apparent. The defendant tendered issue by a general denial. At the conclusion of all the testimony,
Two errors are assigned for our consideration: (1) That the court erred in sustaining the motion to direct a verdict on the record made; (2) that, in the making of the record, the .court erred in excluding certain testimony offered by the plaintiff.
_ „ , ,. . Reiore coming to the real matter around which this complaint centers, it is necessary that we state somewhat of the record, as it was preceding the offer of the rejected testimony. The collision in which Earl Westcott received his injuries occurred at 7 -.30 in the morning. He was unconscious when he was picked up. He was taken immediately to a hospital; remained unconscious until he reached the hospital. About five minutes elapsed between the time he was placed in the ambulance and his arrival at the hospital. Upon reaching the hospital, he was immediately placed upon the operating table. Soon thereafter, he recovered consciousness, and talked with the doctors and nurses attending him. Shirley Parker, one of the nurses, testified that she assisted in taking care of him, and was in the operating room ten or fifteen minutes before Dr. Alford came in.
“He was conscious when I saw him. The anaesthetic was administered about three-quarters of an hour after he was brought into the operating room. After the anaesthetic, he did not recover consciousness until he was removed from the operating room to his room.”
Lyda Ellis testified that she, also, was one of the nurses;
Dr. Alford testified that he was present and assisted in the operation; that y.oung Westcott was under the anaesthetic about thirty minutes and was then taken to his room; that he was unconscious from the time the anaesthetic was administered until he was taken out of the operating room.
Each of these witnesses testified that after he was brought into the hospital and placed on the operating table and before the anaesthetic was administered, he was perfectly conscious, and talked rationally; that he recognized Dr. Alford’s voice before he came into the room, and called him; complained of being in pain and asked that pillows be placed under his limbs to rest them; talked a great deal about different matters and little things, in regard to his position, etc.
Each of these witnesses further testified that, upon recovering consciousness and before the anaesthetic was administered, he said, in speaking of his injuries and how they were brought about: “It is my fault. I tried to get ahead of the Gar. I tried to beat the car. I thought I could beat the car.”
Lyda Ellis further testified: ‘ ‘ Dr. Alford was called in. The boy called him. He heard Dr. Alford talking in the other room, recognized his voice and called him in. I remember hearing him (Earl Westcott) say, ‘It is my fault. I tried to get ahead of the car.’ He did not state how he tried to get ahead of the ear. Just how long it was before the anaesthetic was given after he came into the room, I cannot say. I wouldn’t say it was forty-five minutes, — probably not as long as that.”
Dr. Alford testified that it was thirty minutes after he saw him before the anaesthetic was administered.
‘ ‘ When I reached the hospital, Earl was in the operating room. He was then taken out of the operating room to his room. I saw him for the first time after he had been taken to his room. Tie was then unconscious. At that time, I did not know an anaesthetic had been given to him, but have since learned that it was. I do not know what his condition was from the time he reached the hospital up to the time he received the anaesthetic. I was not there during that interval. I first saw him in his room between 9:00 and 10 -.00 o’clock. He remained unconscious for about five minutes, though it seemed longer. I was standing by his bedside after he recovered consciousness from the anaisthetie. He was unconscious when I first went in the room. He was suffering pain after he came out from the anaesthetic.”
He was then asked this question: “What, if anything, did he say when he regained consciousness, with reference to the injury and how he was injured?”
This question was objected to, and objection sustained.
Thereupon, the plaintiff made the following offer in writing:
“Plaintiff offers to prove, by the witness John E. Westcott, that plaintiff’s intestate then said: ‘I wasn’t riding fast. I was coming down Second Street ten or twelve miles an hour; did not hear any bell. If they had rung the bell, they wouldn’t have got me. Heard a rumble as I came down Second Street. Looked down the street toward town where the cars usually come from; saw no car. Looked in opposite direction, and the car was almost upon me. I done the best I could. I turned with the ear and done the best I could to get out of the way.’ ”
This was objected to and objection sustained, and upon this ruling, error is predicated.
This evidence is clearly hearsay and in the nature of a
In the ease at bar, the catastrophe produced in Earl physical conditions. These conditions of the body, operating upon the mind, naturally found expression immediately upon recovering consciousness. The cause and the condition in which he found himself were intimately and closely associated with each other, one dependent on the other. When he first recovered consciousness, what he said could be well treated as an expression of "the act speaking through the mind of him who had suffered from the act, and was so treated and received by the court. After reaching the hospital, he remained conscious for at least half an hour, spoke freely of his condition and of the cause of his condition. He was then placed under an anaesthetic and operated upon, and did not recover consciousness from the anaesthetic until removed to his private room. He was unconscious when he reached the room. When he recovered consciousness, his father and mother were there by his bedside, no doubt with tearstained faces; at least with faces expressive of anxiety and grief. The declarations offered were made between two and
In Keyes v. City of Cedar Falls, 107 Iowa, 509, it is said:
“It is often difficult to determine when a statement or declaration is a part of the res gestee. The rule ... is, that, if they are near enough in point of time with the principal transaction to clearly appear to be spontaneous and unpremeditated and free from sinister motives, and afford a*363 reliable explanation of the principal transaction, they are admissible-in evidence.”
See also Alsever v. Minneapolis & St. L. R. Co., 115 Iowa 338; Clark v. Van Vleck, 135 Iowa, 194; Dubois v. Luthmers, 147 Iowa, 315; Rothrock v. Cedar Rapids, 128 Iowa, 252.
It is apparent from the authorities that, where the declaration accompanies the act done, and is apparently an expression prompted by the operation of the act upon the mind of the person, and characterizes or explains the act, its competency is easy of determination; but when it is removed from the original act by the lapse of time, and is not the immediate, spontaneous product of the occurrence itself, more difficulty arises. The conditions then must be such as make it appear thát, notwitstanding the lapse of time, the expression was, in fact, produced by the immediate operation of the res gestee upon the mind of the declarant. So jealous is the law of the truth, and so essential is the truth to the correct administration of the law, that the gateways through which it enters are jealously guarded against the possibility of error’s entering, no matter in what disguise she appears.
The rule admitting declarations as’ a part of the res gestee, as originally formulated and followed, required that the declaration be contemporaneous in point of time with the act concerning which the declaration was made. This limitation is exemplified in Regina v. Redingfield, 14 Cox C. C., 341. In this ease, the defendant was indicted for murder. The Crown, after showing that the deceased had been in the house with the accused party, undertook to show that, in a minute or two, deceased rushed out with her throat cut, said something and died. The Crown undertook to show what she said at that time, and the statement was held not to be a part of the res gestee, the court saying that it was not a part of the thing done, or something said while something was being done, but something said after something done.
The doctrine has not been as closely applied in this country, and it is not required that the declaration be con
In Fish v. Illinois Cent. R. Co., 96 Iowa, 702, 707, this court said: ‘ ‘ The law recognizes things said and done so soon after the act complained of as to be, in effect, a part of it, as of the res gestee, and, applying the rule to declarations, if they are within such time as that premeditation is precluded, they may be regarded as a part of the thing done. ’ ’
In the case at bar, the declaration offered, being of a self-serving character, ought not to be received unless it affirmatively appears to be a part of the res gestee. If time for premeditation, time for reflection, has passed before the declaration is made, which gives opportunity for fabrication, the court will reject' it unless it affirmatively appears that, notwithstanding the time and the opportunity, the declaration was, in fact, the instinctive and spontaneous utterance of the mind, influenced only by the transaction as it actually occurred. The general rule, as laid dowp. in the Keyes case, supra, is that, ‘ ‘ If they are near enough in point of time with the principal transaction to clearly appear to be spontaneous and unpremeditated and free from sinister motives, and afford a reliable explanation of the principal transaction, they are admissible in evidence;;’ otherwise not.
The difficulty lies, not in ascertaining the rule, so much as in its application to particular facts, and each case, therefore, must be judged largely by its own peculiar facts; and this is essentially true.when the declaration or statement is not contemporaneous with the transaction. Applying these
The thought first spoken after recovering consciousness from the shock of contact with the car, as hereinbefore narrated and introduced by the plaintiff as a part of the res gestee, and received by the court as such, must be accepted as the correct explanation of deceased’s understanding as to how the accident occurred. A statement subsequently made which contradicts the first cannot be a part of the res gestee for both cannot be the natural and spontaneous utterance of thoughts created by or springing out of the transaction itself.
The street between curb lines is 40 feet wide. The railway tracks are 4 feet 8 inches in width. The cars extend some distance over the rails, so that the curbing is approximately 16 or 17 feet from the car. From the curb to the inside walk lines is 19 feet. When he discovered the car, he turned abruptly to the east, and collided with the car at a
We find no error in the record, and the cause is— Affirmed.